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Journal of Low 2015-2.Pdf Ivane Javakhishvili Tbilisi State University Faculty of Law Journal of Law №2, 2015 UDC(uak) 34(051.2) s-216 Editor-in-Chief Irakli Burduli (Prof.,TSU) Editorial Board: Levan Alexidze (Prof.,TSU) Giorgi Davitashivili (Prof., TSU) Avtandil Demetrashvili (Prof.,TSU) Guram Nachkebia (Prof., TSU) Tevdore Ninidze (Prof., TSU) Nugzar Surguladze (Prof.,TSU) Lado Chanturia (Prof., TSU) Besarion Zoidze (Prof., TSU) Giorgi Khubua (Prof.) Lasha Bregvadze (T. Tsereteli Institute of State and Law, Director) Paata Turava (Prof.) Gunther Teubner (Prof., Frankfurt University) Lawrence Friedman (Prof., Stanford University) Bernd Schünemann (Prof., Munich University) Peter Häberle (Prof., Bayreuth University) Published by the decision of Ivane Javakhishvili Tbilisi State University Publishing Board © Ivane Javakhishvili Tbilisi State University Press, 2016 ISSN 2233-3746 Table of Contents Giorgi Davitashvili Crimes Committed Against the Society According to the Georgian Traditional (Folk) Law .............………. 5 Medea Matiashvili Filicide in Old Georgian Law ........…........… .......… .......….....… ........…......….......…........…........………………. 27 Daria Legashvili, Razhdeni Kuprashvili Limits of Notary Authority in the Process of Issue of Writ of Execution ...….......…........…........………………47 Nino Lipartia Family Mediation – Alternative Means of Discussion of Family Legal Disputes ...….......…........….........….69 Solomon Menabdishvili Competitive and Legal Assessment of Restrictions on Horizontal Agreements ...….......…........….............84 Aleksandre Tsuladze Dynamics of Development of the Judicial Mediation in the United States Based on the Example of California and Florida States ...….......…........…...............………………………………………..110 Goga Kikilashvili Purpose as the Criterion for Distinction of Administrative and Civil Contracts ...….......…........…............136 Revaz Khoperia Mistake in the Implementation of Discretionary Power ...….......…........…........………………………………….153 Natalia Burduli Critical Comparison of the Decisions of the United States’ Courts in Boumediene v. Bush 553 US 723 (2008) and Al Maqaleh v Gates No.09-5265 (2010) From the Perspective of International Law ...……………………………........…........…......174 Guidelines for authors ...….......…........…........……………….….......…........…........…………………………….…….179 Giorgi Davitashvili * Crimes Committed Against the Society According to the Georgian Traditional (Folk) Law 1. Introduction Present work discusses several crimes committed against the society and considered under the Georgian traditional law. Based on the materials, it is evident that local traditional law was used for the punishment of criminal actions directed against the specific family name, family branch, specific family and person as well as for certain crimes, which were perceived as the crimes directed against the residents of specific territorial unit (for example, community, village). The object of impingement for the crime against the society is the societal, public interest. The above could be any interest, important or the one bearing minor importance. In the mountainous Georgia crimes directed against the society (for example betrayal to the society) could be directed against the interests of the whole ravine as well as local territorial unit. In particular, crime against the society could be committed against the community of the whole Svaneti over the Bali (all communities of Svaneti over the Bali) and all twelve communities of Khevsureti or Pshavi, as well as against the specific communities or villages in the above areas. In this regard, we would borrow from the entry made by M. Kedeladze. According to his definition, the following would be assigned “samani” punishment (outlawing from the society): 1. Khevsureti traitor; 2. Community betrayer; 3. Village betrayer.1 Among the crimes against the society the betrayal of community, village was considered as the heaviest crimes. In some mountainous regions of Georgia, the definition of community betrayal is different compared with other regions. In this regard, the definition of community betrayal in the traditional law of Pshavi is worth mentioning. The above mentioned issue has been studied in depth by D. Jalabadze. In Pshavi the above type of criminal action was referred to as the betrayal to community and sacred icon. Composition of such crimes was quite diverse and included various types of criminal actions. According to the definition provided by D. Jalabadze, in general terms, “any action, violating the traditions, habits of society, which are taken as dogmas by society can be considered” as the betrayal to the community.2 Such action could be demonstrated in the form of robbery of community, denunciation, reproaching, offence to the community icon and other irrelevant behaviors.3 D. Jalabadze notes that even the experts of Pshavi * Doctor of Law, Professor TSU Faculty of Law. 1 Kedeladze M., Khevsureti Materials, 1951, Personal Archive, Notebook № 18, 1. Archive of M. Kedeladze is Stored in the Archive of the Institute of History and Ethnology, Tbilisi State University (in Georgian). 2 Jalabadze D., Crime and Punishment in the Georgian Traditional (folk) Law, Tbilisi, 2003, 36 (in Georgian). 3 Ibid, 37. G. Davitashvili, Crimes Committed Against the Society According to the Georgian Traditional (Folk) Law denomination cannot comprehensively list the specific actions considered as community betrayal and they limit themselves with the indication of facts known to them (heard or witnessed). According to his definition, the reason for the above was that, according to the traditional law, recognition of any action as the betrayal to community was done based on the assessment of each specific fact.4 Inhabitant of village Magaroskari, local teacher Ivane Kartvelishvili provided D. Jalabadze with relatively comprehensive information regarding the subject of our work. According to his information: “Theft of bowls-treasures and even showing them to other was considered as the betrayal to community…. for these cases the exile from the village was considered. Forbidden relationship with men (“relationship with men” – forbidden sexual relationship followed with pregnancy – D. J.) - in this case both parties were punished; the following crimes were included in the betrayal to the community: theft, forbidden sexual relationship, revealing the community secrets, deforestation of community forests, misappropriation of community land, non- fulfillment of community assignment - the case when somebody avoids common activities, such as during the war, or construction of castles, towers and other works, - in such cases one would say that the person dishonored the community and would be punished via the slaughtering of a calf, or his/her livestock would be confiscated in favor of the community.”5 D. Jalabadze notes rightly that according to the provided materials, in line with the traditional law, betrayal to the community considered not only betrayal in a narrow sense but also such actions, which visually did not contain signs of betrayal, however, were inflicting averse damage to the common interests of the community (society).6 Hence, based on the above, in Pshaveti traditional law the betrayal to the community implied the betrayal in a narrow sense (betrayal with the direct meaning of the word), as well as in a wider sense, it included factually all actions directed against the essential interests of the society (community, village). Non-existence of comprehensive list for such actions shall not surprise us, due to the casuistic nature of traditional law. It was fully possible to consider some new case as an action directed against the village residents, community and accordingly to assign punishment against the perpetrator. Hence, all actions that could be assessed as the betrayal to community could not be defined preliminarily. Naturally, there were specific actions, which were generally perceived as betrayal to community and therefore, information providers from Pshaveti indicated to those actions. Betrayal to the community could be demonstrated in the active actions (for example, robbery of community) or inactiveness (for example, “avoiding community duties”).7 In Mtiuleti, betrayal to the community also considered the actions against the community. For example, residents of Khando considered non-delivery of payment in kind from the community shrine – “Kovladtsminda” owned vineyards as the betrayal to the community.8 The same could be stated in 4 Jalabadze D., Crime and Punishment in the Georgian Traditional (folk) Law, Tbilisi, 2003, 36 (in Georgian). 5 Ibid. 6 Ibid, 37-38. 7 Ibid, 38. 8 Topchishvili R., Georgian Ethnography, Ethnology, Tbilisi, 2006, 118 (in Georgian). 6 Journal of Law, №2, 2015 relation to the Khevsureti. One can also find in the materials from Khevsureti, that some actions directed against the society were mentioned as the betrayal to the community.9 Perception of community betrayal as icon betrayal is not surprising in the traditional law of Pshaveti and other mountainous regions of East Georgia. In the mountainous regions of Georgia local shrines – cross-icons – were playing critical and important role in terms of social organization of the society. Some of them were patrons of community organizations, others – patrons of territorial-ethnic groups (Pshav-Khevsurians, Tushetians, Mokhevians, Mtiul-Gudamakrians).10 Society was organized around the cross-icons. The institution of servitude to the cross, servitude to the icon was
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